Revisiting the non-binding legal aspects of the SDGs

A goal may be defined as “the end toward which effort is directed”[1] or “something (one is) trying to do or achieve”[2], i.e., an aim. SDG-detractors claim that mere efforts to try achieving the aims of the 2030 Agenda are neither monitored nor sanctioned by institutions and/or through compliance mechanisms. On the contrary, many of the principles and concepts that are inherent in the SDGs can be found in binding international instruments, both at the governance level (e.g., common but differentiated responsibilities, involvement of scientific knowledge, partnership, transparency), as well as in general concerns (e.g., intergenerational equity) and specific objectives (e.g., food security, peace). Rights and obligations derived from these principles and set forth in binding international instruments may be enforced through specific non-compliance and liability provisions and/or dispute resolution systems that might be more efficient at solving enforcement issues in their respective fields than a general compliance scheme.[3] As such, the SDGs could be considered as soft law instruments, i.e., “non-legally binding but normatively worded instruments” whose “interaction with related treaties may transform them into something that is binding”.[4]

With their wider scope and through the principle of integration (implying that, in the light of the interlinked aspect of the goals, any measures carried out towards the achievement of (a) goal(s) should integrate a view to achieve other goals in a coherent and balanced manner), the SDGs have the potential to create links between otherwise fragmented binding instruments at both international and national/local levels. As such, the principle of integration may be used “as a tool for judicial reasoning endowed with the capacity of reconciling conflicting norms while also yielding substantive outcomes”.[5] In the same way, the SDGs may also resolve the fragmentation inherent in the concept of sustainable development in various international law instruments, and thus contribute to crystallising the concept of sustainable development “as a norm”.[6]

As non-binding goals, the SDGs allow for more flexibility in their implementation and thus have stronger and more universal support. By integrating principles that exist in a binding form in various multilateral treaties, the SDGs promote these principles to non-parties to these treaties, therefore expending the potential reach of these treaties, although without any formal constraints. Indeed, the SDGs are meant to be universal, changeable, and immediately implementable through locally adapted laws and policies[7], thus giving States enough flexibility to comply with and locally transpose existing international obligations without expressly adhering to the binding instruments in which they are formalised. As such, the SDGs allow for a substantial exercise of sovereignty in the freedom given to States in their implementation (e.g., quantified goals, deadlines, etc.), including by letting States sovereignly decide how and to what extent they will bind themselves and become accountable to their nationals.

Since the SDGs “supplement” existing international instruments[8], does the legal status of the SDGs really matter? If goals are aims and we are making efforts to achieve such aims, then the crucial question is not whether these goals constitute hard law or soft law or neither of them, but rather the feasibility of their implementation[9], i.e. whether and how they can be effectively translated into action. In the past couple of years, Member-States of the 2030 Agenda have been reporting on existing and new SDG-oriented policies and actions.[10] Of course, as States have “common but differentiated responsibilities” and set their own priorities in their own local environment, there is no standard checklist for this task and there is always more that can be done. However, the SDGs, although not legally binding, have already had a rather substantial influence on local legislations and have indeed resulted in new laws and regulations at regional, national, and local levels. For instance, in India, several schemes are being implemented in Delhi regarding education, health, urban development, water supply and sanitation, clean water and air, and greening public spaces.[11] France has set forth regulations for the integration of sustainable development into the national school programs.[12] For EU-wide examples, one may look at the European Union’s SDG policy mapping.[13] 

In implementing individual SDGs or SDG-serving international legal provisions, States must keep in mind the integration principle and ensure that working towards achieving one or multiple goals does not disproportionately and adversely impact the achievement of other goals. They must interpret existing, and create new, legislation considering the integration principle of the SDGs. Implementing the integration principle also implies better cooperation in the legislative process, both at international level between States and at national level between national and local authorities and avoid working “in silos”. “(I)t can be argued that the 2030 Agenda has the potential to become a blueprint for the further development of the law itself, promoting mutual supportiveness between different regimes, providing insights into existing gaps”.[14]

A major issue going forward is the availability of development finance for achieving the SDGs. While some financing schemes are provided for by international treaties, much of the funding required for the SDGs is reliant on international solidarity and domestic financing priorities. This is probably where the biggest weakness of the lack of legal status of non-legally binding goals lies.